PROCEDURE. On February 25, 1980, Leo Moore, doing business as Shady Springs 3ody Shop (Applicant) made application to the Commission to amend P.S.C.

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1 4.C. CASE NO EO MOORE, doing business as SHADY SPRINGS 30DY SHOP, Cool Ridge, Raleigh County. Application for an amendment.of certificate. HEARING EXAMINER'S RECOMMENDED DECISION PROCEDURE On February 25, 1980, Leo Moore, doing business as Shady Springs 3ody Shop (Applicant) made application to the Commission to amend P.S.C. t.c. Certificate No. F-5820 ''to include the City of Beckley in his iperation as a common carrier of wrecked and/or disabled motor vehicles in Raleigh County on the one hand and points and places in West Virginia, in the other hand." By its order dated February 26, 1980, the Commission required the Ipplicant to publish notice once in a newspaper published and of general zirculation in Raleigh County, and permitted anyone desiring to make ibjection to do so in writing within ten (10) days after publication. Che order further specified that if no protests are received, the Commis- sion may grant the request without a hearing. Publication was made on April. 4, Protests were received from James Buckland, Raleigh Wrecker Service & Storage, Inc., (April 8, 1980), 3nd Frank 1. Warren, Wrecker Service (March 11, 1980). By its order dated April 15, 1980, the Commission set the matter to De heard in Charleston on May 6, The hearing was held as scheduled. A Transcript of Proceedings of 79 pages was produced. Mr. Leo Moore appeared in his behalf, and also appearing as witness sre Forest L. Boyd, Howard Vest, Gary Brewster, Jerry Fleshman and Thomas 411en. Three Protestants/Intervenors appeared. Frank Warren of GJrecker Service, Beckley; James Buckland of Raleigh Wrecker Service 5c Storage, Inc., Glen Morgan; and Arnold Lucas, Raleigh Wrecking Company. EVIDENCE The Applicant operates a wrecker service in Shady Springs at the

2 intersection of State Route 3 and U.S. Routes 19/21. He has 4 wrecker :rucks. His operating territory is Raleigh County excluding the City )f Beckley. (Commission Order, M.C. Case No , order entered July 28., 1975). Raleigh County has a population of about 84,000; Beckley ias a population of about 25,000. (Tr., pp. 5-7, inclusive). There Ire four wrecker operators serving Beckley including the three protesting intervenors. (Tr., p. 8). Sergeant Forest L. Boyd of the City of Beckley Police Department testified for the Applicant. Lt. McMillan authorized him to testify. 3is basic testimony was that responded 80 times out of 158 Zalls: average response time 14 minutes; Raleigh Wrecker responded 39 times out of 75 calls, average response time 18 minutes; and Raleigh drecking responded 49 times out of I24 calls, average response time 13 ninutes. (Tr., pp , inclusive). On closer interrogation Sgt. Boyd gave specific days and information 9s follows: November 8, 1979: November 8, 1979:,. Raleigh Wrecker Raleigh Wrecker January 31, 1980: Raleigh Wrecker January 31, 1980: January 31, 1980: Raleigh Wrecker (Tr., pp , inclusive). On further questioning Sgt. Boyd st are sometimes available, sometimes not. 12:18 a.m. 12:17 a.m. 12:20 a.m. 8:53 a.m. 12:08 p.m. 12:09 p.m. 12:J-0 p.m. No response No response Did respond (7 minutes) Did respond Responded Arrived 9:15 a.m. Did not respond - All units out No response Re response Did respond ted that the B kley wreckers (Tr., p. 24). When. the three Beckley wreckers do respond the service is excellent, but are not always available. (Tr., p. 27). Sergeant Howard Vest of the Raleigh County Sheriff's Department testified for the Applicant. 7 of 14 times; Shop 30 of 30 times. His testimony showed that responde Raleigh Wrecker 3 of 8 times and Shady Springs Body He further testified that he had called, Raleigh Wrecking and Raleigh Wrecker several times and got no responses. March 9, 1980, was one such day. March 13, 1980, was another such day. He testified that Shady Springs (the Applicant) was dependable, reliable CHARLESTON

3 and gave 100% response. On questioning, the Witness did say that within the last month Raleigh Wrecker response was very good. (Tr., pp , inclusive). Gqry Brewster testified for the Applicant. He lives in Shady Spring and works in Beckley. He can drive from Shady Springs to the "Shopping Center" in 20 minutes. His vehicle broke down twice. He can't afford a wrecker. He called a friend for help. He had a bed experience with a wrecker company (Raleigh Wrecker): License plate bracket ripped off; mud in wheel slots, etc. Be can trust Moore more. On questioning, he stated he.was reimbursed for the 'damage, which occurred about March (Tr., pp , inclusive). Jerry Fleshman of Beckley told of two incidents. The first occurrec about 1O:OO p.m. in Beckley. His car wouldn't run. He called several wreckers. None could come. He called Leo Moore, the Applicant, and was told that Leo Moore couldn't come into Beckley to get his car. So a pick-up truck pushed him to the City limits where Moore could pick up his car. The next day he tried to get Beckley wreckers and couldn't. This happened January The second incident he left the car sitting all night in Beckley because he could't get Beckley wreckers. Finally, he got a friend to work on it. (Tr., pp , inclusive). Thomas Allen, who works for Mr. Moore, also testified in behalf of the Applicant. He generally stated that Moore could not go into the City, and this restricted his operation, and that frequently he got calls from the Sheriff's Department for hauling into the City. (Tr., pp , inclusive). Mr. Moore testified in his own behalf. He pointed out that it costs customers double for him to call: another wrecker to take the disabled vehicle into the City. He turns down 2 calls out of 10 because of inavability to haul into Beckley. get vehciles off of the highway. He helps in cases of emergencies to Many cases want to go to the car dealer and 11 major auto dealers are inside Beckley. He can't service this trade. He believes the public needs his service and he has the equipment to serve the public. He wants the privilege of hauling into the City. George Newton testified for Raleigh Wrecker. He works for Raleigh Wrecker and lives in Beckley. While on duty last Friday night (May 2,

4 1980) he heard on the scanner a call from the Sheriff to Shady Springs (20 minutes) and didn't receive the call being 7 minutes from the wreck In Mckrthur Hill. He has been commended by the Chief of the City Police or goad service. He gives priority to Police calls, State, City and Zounty. (Tr., p , inclusive). Mr. Buckland, protesting for Raleigh Wrecker Service and Storage, Tnc., said he has 4 wreckers; that he and Raleigh Wrecking and Warren Lake good care of Beckley needs; that here is no need for more wrecker service in and for Beckley. (Tr., pp. 66 and 67). Mr. Warren, protesting for Wrecker Service, said that he 2perates 5 of 8 wreckers he has. He has had difficulty keeping a night nan on, and this may have occasioned some no responses. (Tr., pp , inclusive)'. Mr. Lucas of Raleigh Wrecking Co. does not like to see some one zome in and take business away from the 3 or 4 wrecking companies serving Beckley. He can serve Beckley fast. He would hate to see Moore zharge to come in to Beckley from Shady Springs and charge to go back. rhere is no need for such higher rates for Beckley service. If Moore is allowed in Beckley, the City Police will use him more and more and cut down on the present wreckers' business. The existing wrecker services are sufficient to do the job in Beckley. He now has one wreckei Used to have 4 or 5. Working on building a second. (Tr., pp , inclusive). Mr. Buckland added the main reason he is protesting is that there isn't enough business for the 4 wreckers he operates. (Tr., p. 74). Mr. Moore emphasized that he wasn't asking for the cake; just wantec the crumbs. Just wanted to be called when the others 6ouldn't provide service. He wants rights to tow into the City. (Tr., pp. 74 and 75). Mr. Buckland submitted his Day Call Sheets and Night Call Sheets for April (Tr., pp. 76 and 77). (Raleigh Wrecker Service and Storage Exhibits Nos. 1 and 2). DISCUSS ION The evidence in support of the Applicant does not support a finding of need of additional wrecker service for customers or potentital customers within the City of geckley. Neither the testimony of Officer Boyd of the City of Beckley or Officer Vest of the Raleigh County Sheriff's Department support such a need; nor does the testimony of PUBLIC 6E OF W ~ ~ ~ s ' o N C -4-

5 . itnesses Brewster or Fleshman. Witnesses Allen and Moore, while self-serving in a general sense, id point out the inability of the Applicant, under existing authority o make a pick-up of a disabled or wrecked vehicle in Raleigh County outside of Beckley) and to deliver the vehicle into Beckley, which ouses eleven major auto dealers, according to Mr. Moore. It appears hat, given the sequence of events at times of auto wrecks, etc., that lublic convenience and need of those requiring service in Raleigh County outside of Beckley) is not served if that vehicle owner happens to..want.o be transported to a Beckley garage. The charge to the vehicle owner rould be fair because mileage rate under present Applicant tariff would ie applied while hooked up, or hourly rate, whichever is greater. The pestion of wh ether the wrecked or disabled vehicle owner first calls the ipplicant or one of the Beckley common carriers is a matter of market,lace dependent on choice. Such choice initially is in no way affected )y the ability or inability of the Applicant to haul into Beckley, Howver, the need and convenience of the wrecked vehicle owner is affected then he may call the Applicant only to be told that he can t be hauled nto Beckley. Mr. Moore testified that 2 of 10 calls request haul into beckley which he can not servi ce. The decision to permit the Applicant to haul wrecked and/or disabled rehicles into Beckley is restricted to such vehicles only. ihall not 7 pick up wrecked and/or disabled vehicles in Beckley, No widence whatsoever supports the need for such service. CONCLUSION OF LAW The Applicant Public convenience and necessity require that the Applicant be ;ranted authority to deliver wrecked and/or disabled motor vehicles to :he City of Beckley, provided that such authority shall not be inter- xeted to mean that the Applicant shall pick up wrecked and/or disabled notor vehicles in the City of Beckley. ORDER IT IS, THEREFORE, ORDERED THAT: P.S.C. M.C. Certificate No, F-5820 be, and it hereby is, amended to wthorize the Applicant, Leo Moore, doing business as Shady Springs Body ;hop, to deliver wrecked and/or disabled motor vehicles to points and )laces within the City of Beckley; provided however such authority shall lot be understood to mean that: the Applicant is authorized to pick up PUBLIC 6 OF ~ N?:: on -5-

6 wrecked and/or disabled motor vehicles within the City of Beckley; and.therefore the Applicant, Leo Moore, doing business as Shady Springs Body Shop, is specifically restricted from picking up wrecked and/or disabled motor vehicles within the City of Beck Ley. The Executive Secretary is hereby ordered to serve a copy of this,recommended order upon the Commission by hand delivery, and upon all parties of record by United States Certified Mail, return receipt requested. Leave is hereby granted to the parties to file written exceptions supported by a brief with the Executive Secretary of the Commission within fifteen (15) days of the date this order is mailed. If exceptions are filed, th& parties filing exceptions shall certify to the Executive Secretary that all parties of record have been served said exceptions. If no exceptions are so filed this order shall become the order of the Commission, without further action or order, five (5) days following the expiration of the aforesaid fifteen (15) day time period, unless it is ordered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to a Hearing Examiner s Recommended Order by filing an appropriate petition in writing with the Secretary. No such waiver will be effective until approved by order of the Commission, nor shall any such waiver operate to make any Hearing Examiner s Recommended Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission. Clement R. Bassett Hearing Examiner PUBLIC OF s -Ny$~s C C-s -6-